1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

SOUTHEASTERN PENNSYLVANIA : CIVIL ACTION

TRANSPORTATION AUTHORITY :

: No. 04-4785

v. :

:

CSX TRANSPORTATION, INC., ET AL. :

AND NOW, this 21st day of December, 2005, after a nonjury trial at which it had

the opportunity to observe the demeanor of the witnesses and to evaluate their credibility

and testimony, the Court makes the following findings of fact and conclusions of law.

FINDINGS OF FACT

1. Southeastern Pennsylvania Transportation Authority (“SEPTA”) operates a

public transportation system which provides rail, bus, trolley and related transportation

services for commuters in the City of Philadelphia and the surrounding Pennsylvania

counties. Stipulation of Undisputed Facts ¶ 1 (Document No. 56) (“Stipulation”).

2. CSX Transportation, Inc. (“CSX”) operates a rail network in the United

States, providing freight transportation over a network of rail tracks in many states,

including the Commonwealth of Pennsylvania and the City of Philadelphia. Stipulation

¶ 2.

3. AT&T Corporation (“AT&T”), AboveNet, Inc., (“AboveNet”), and Qwest

Communications International, Inc. (“Qwest”) (collectively “Fiber Optic Cable Companies”),

are telecommunication companies, which, among other things, provide fiber optic cable

networks throughout the United States, including Philadelphia. Stipulation ¶ 3.

4. The City Branch is a railroad right-of-way which runs, in part, below street

Case 2:04-cv-04785-TJS Document 69 Filed 12/21/05 Page 1 of 7
2

grade from 26th Street to 30th Street in the City of Philadelphia (“City Branch”). Stipulation

¶ 4.

5. The City Branch consists of two railroad rights-of-way that are separated in

tunnels by concrete columns and run parallel to each other from the tunnel portal at 27th

Street to a point where they join at 30th Street.

6. The northerly right-of-way was originally granted to the Pennsylvania &

Reading Railroad and passed to Conrail and then, through a quitclaim deed dated June

30, 1995, to SEPTA. Stipulation ¶ 7.

7. The southerly right-of-way was originally granted to the Schuylkill River East

Side Railroad Company (“SRESRC”) and later operated by the Baltimore and Ohio

Railroad Company which transferred it to CSX. Stipulation ¶ 8.

8. There currently exists only one track in the relevant portion of the City Branch

and that track is owned by CSX. Stipulation ¶ 12.

9. Since it purchased the northerly right-of-way in 1995, SEPTA has not

installed tracks nor operated any trains on the property. Stipulation ¶ 13.

10. Attached to the quitclaim deed transferring the right-of-way from Conrail to

SEPTA, was a railroad valuation map, dated April 24, 1995, prepared by Conrail. Trial Tr.

Oct. 3, 2005 (“Tr. I”) at 17; Ex. P-75.

11. A railroad valuation map, which does not contain a metes and bounds

description, is prepared by a railroad to record the assets and property, including property

improvements, owned or controlled by the railroad. 

12. The City of Philadelphia initially refused to record the quitclaim deed because

it lacked a sufficient description of the property being conveyed. Tr. I at 18. 

Case 2:04-cv-04785-TJS Document 69 Filed 12/21/05 Page 2 of 7
3

13. SEPTA commissioned and obtained a survey of the right-of-way conveyed

by Conrail to SEPTA which was incorporated in the deed for recording purposes. Tr. I at

18-19.

14. Andrew C. Putnam, the plaintiff’s expert, then an employee of Hunt

Engineering Company, performed field work as part of a 1999 survey of the right of way

from 30th Street to 27th Street and 500 feet into the tunnel which is 20 feet below street

grade. Tr. I at 35, 41-42, 45-46.

15. Putnam, as project manager, resurveyed the area in 2003 in connection with

this dispute over the City Branch. Tr. I at 41.

16. Because there were no monuments for use in the first survey, Putnam used

the survey marks set by the City of Philadelphia’s surveyors using City plans. Tr. I at 45-

46, 52-53.

17. Putnam reviewed and relied upon, together with all the other information he

had assembled, railroad valuation maps, track agreements, physical features on the land,

and official street plans. Tr. I at 37-40.

18. Putnam conducted his survey according to the protocol set forth in Boundary

Retracement Principles and Procedures for Pennsylvania by Knud Everett Hermansen,a

learned treatise accepted by both parties. Tr. I at 38-40; 116-18 (Putnam); Trial Tr. Oct.

6, 2005 (“Tr. II”) at 3-4 (Rife).

20. By Ordinance approved July 3, 1885, the City of Philadelphia authorized the

Schuylkill River East Side Railroad Company (“SRESRC”) to construct a railroad upon land

along Pennsylvania Avenue as shown on the map incorporated in the Ordinance. Ex. P65.

Case 2:04-cv-04785-TJS Document 69 Filed 12/21/05 Page 3 of 7
4

21. The July 1885 Ordinance does not state any specific measurements,

easements, rights-of-way or distances. Tr. I at 55; Ex. P-65.

22. By Ordinance approved November 19, 1886, the City of Philadelphia

authorized the Department of Surveyors to revise the original July 1885 plan in order to

reduce the width of Pennsylvania Avenue between 25th Street and Fairmount Avenue to

its original width due to the “manner in which the railroad . . . is being constructed along

Pennsylvania Avenue.” Ex. P-65.

23. The City Plan of Revision of Curbs and Grades of April 7, 1898 is the first

plan where the railroad tracks are shown as below grade, in the present-day “subway.” Tr.

I at 61; Ex. P-67.

24. The October 27, 1916 valuation map, jointly prepared by the SRESRRC and

the Philadelphia and Reading Railway Company, established the street line along

Pennsylvania Avenue and enabled Putnam to set the center line of the right-of-way. Tr.

1 at 64-66; Ex. P-68.

25. The location of the center line of the right-of-way has never changed. Tr. I

at 125.

26. The boundary of the SRESRRC has shifted one foot off the center line as a

result of the tracks rights agreement dated November 6, 1885, subsequent to the

establishment of the center line. Tr. I at 126-27.

27. Putnam used the stone masonry wall on the park side to confirm his survey.

Tr. I at 73.

28. The stone masonry wall on the Fairmount Park side first appeared on the

October 27, 1916 valuation map jointly prepared by the SRESRRC and the Philadelphia

Case 2:04-cv-04785-TJS Document 69 Filed 12/21/05 Page 4 of 7
5

and Reading Railway Company. Ex. P-68.

29. The CSX right-of-way is 25 feet from the southerly side of Pennsylvania

Avenue. Tr. I at 65-67; 93-94.

30. The railroad valuation maps reference the July 3, 1885 Ordinance and the

November 6, 1885 track rights agreement between the original owners of the right of ways,

The Philadelphia and Reading Railroad Company and the SRESRC, which established

where the tracks would connect and where the grades of the tracks would coincide. Tr. I

at 59-60.

31. The November 6, 1885 agreement incorporates a map that was attached but

is now missing. Ex. P-66; Tr. I at 119.

32. The railroad valuation maps were consistent in defining the location of both

rights-of-way.

33. The joint railroad valuation map dated October 27, 1916 shows the southerly

boundary of the SRESRRC right-of-way as five feet beyond the masonry wall on the

Fairmount Park side, and the total width of the SRESRRC right-of-way is shown at a scaled

distance of 25 feet. Tr. I at 63-67; Ex. P-68.

34. The two railroad valuation maps dated June 30, 1917, which were prepared

separately and independently by the respective owners of the rights-of-way, also show a

scaled distance of 25 feet between the boundary of the SRESRRC right-of-way on the park

side of the masonry wall to the boundary between the rights of way. Tr. I at 68-73; Ex. P69 and P-70.

35. The southerly Pennsylvania Avenue street line on the Putnam survey is

consistent with the valuation maps.

Case 2:04-cv-04785-TJS Document 69 Filed 12/21/05 Page 5 of 7
6

36. Putnam determined that the width of the CSX right-of-way is 25 feet by

consulting, among other documents, the 1885 city plan, which establishes the center line

of the SRESRR right-of-way at 17 feet, and the railroad valuation maps, which confirmed

that the width of the right-of-way from the southerly boundary line n the Fairmount Park

side to the right-of-way boundary is 25 feet. Tr. I at 93.

37. The center line of the right-of-way and the street line have not changed.

38. The Hunt Engineering certified survey of the City Branch right-of-way from

26th Street to 30th Street, dated June 23, 2004, correctly represents the locations of the

rights-of-way, the track and the fiber optic cable lines within the City Branch.

39. In 1989, under an agreement with CSX, AT&T placed fiber optic cables in the

City Branch. Stipulation ¶ 9.

40. In 1998, pursuant to separate agreements with CSX, AboveNet and Qwest

installed fiber optic cables along the City Branch. Stipulation ¶ 10.

41. Pursuant to the terms of their individual occupancy agreements with CSX,

the Fiber Optic Cable Companies made or owed payments to CSX for the fiber optic cables

placed by them within the City Branch. Stipulation ¶ 11.

42. The fiber optic cables of defendants AT&T, Abovenet and Qwest are

currently in SEPTA’s portion of the right-of-way.

43. Twenty-five lineal feet of CSX track encroachesupon the SEPTA right-of-way

near the 30th Street terminus of the City Branch. Tr. I at 130-32, 146.

CONCLUSIONS OF LAW

1. In this diversity action, Pennsylvania substantive law applies.

2. The finder of fact may weigh the credibility of one expert over another and

Case 2:04-cv-04785-TJS Document 69 Filed 12/21/05 Page 6 of 7
7

credit one expert report over another, and may accept all, some or none of an expert’s

opinions. United States v. Allegheny Ludlum Corp., 366 F.3d 164, 185-86 (3d Cir. 2004);

In re Cendant Corp. Litigation, 264 F.3d 201, 253-54 (3d Cir. 2001).

3. SEPTA has sustained its burden of proving the boundaries of the parties’

respective rights-of-way in the City Branch.

4. The Fiber Optic Cable Companies are liable to SEPTA for trespass on

SEPTA’s right-of-way.

5. CSX is liable to SEPTA for trespass on SEPTA’s right-of-way.

6. As a Commonwealth agency, SEPTA is not subject to the statute of

limitations with respect to its trespass claim.

7. There has been no legal or de facto taking of SEPTA’s right-of-way.

________/s/_________________

TIMOTHY J. SAVAGE, J.

Case 2:04-cv-04785-TJS Document 69 Filed 12/21/05 Page 7 of 7